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State of
surveillance:
Key revelations
Only a tiny fraction of the secret documents liberated by
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Edward Snowden have been published or reported by
the journalists he gave them to. While Glenn Greenwald
and his colleagues have been accused of everything from
helping terrorists and paedophiles to profiteering and
covering-up damaging information, they have been both
judicious and responsible in the way they have released
information. Moreover, the drip-feed of stories revealing
the complicity of an ever wider group of companies and
countries has ensured that one of the most important
civil liberties stories of modern times has now been front
page news around the world for more than six months. No
other leak in history has managed this feat. Highlights
of the NSA Files released so far include:
The Verizon Court Order: the first of the Snowden leaks
revealed that the NSA was collecting the phone records
of millions of Americans. While the scheme was launched
by the Bush administration, it was widely believed that
Obama had scrapped it.
Prism: enables the NSA and GCHQ to mine
information from the servers of some of the biggest
American technology companies (Google, Apple, Microsoft,
Facebook, AOL, PalTalk and Yahoo). A similar programme
called Muscular was intercepting millions of records a
day from Yahoo and Google.
Tempora, part of the master the internet programme:
GCHQ intercepts and stores the vast amounts of data
flowing in and out of the UK via the undersea fibre-
optic cables that are the veins of the World Wide Web.
Similar bulk-intercept programmes are run by the NSA
(Blarney, Fairview, Oakstar and Stormbrew).
Xkeyscore: an NSA run data-retrieval system used to
access emails, telephone calls, internet usage records and
documents transmitted over the internet
Boundless informant: a data analysis and visualization
system that provides an overview of the NSAs
surveillance activities by country or program. Almost 3
billion data elements from inside the United States were
reportedly captured by the NSA over a 30-day period
ending in March 2013.
Bullrun and Edgehill: a $250 million-peryear programme under which the NSA and GCHQ
(respectively) have defeated much of the encryption
technology that underpins the security of the internet.
Cyberwar, espionage and collusion: further revelations
detail the extent to which the US is prepared to use
international cyber-attacks to advance US objectives
around the world, the monitoring of phone calls of
35 foreign leaders and the complicity in NSA-GCHQ
surveillance of intelligence services of among others
Belgium, Denmark, France, Germany, Italy, Japan, the
Netherlands, Norway, Singapore, South Korea, Spain and
Sweden.
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system, its a data analytics suite is the narrative behind the
thriving international trade in truly Orwellian tools.
Problematising the surveillance revealed by Edward
Snowden is relatively straightforward. Security and
intelligence agencies running amuck across an insecure
digital infrastructure using unchecked powers inherited
from the analogue age, to paraphrase Human Rights Watch.
Achieving meaningful reforms that properly address this
problem is a much more difficult proposition because of
the vested interests in maintaining the status quo and the
jurisdictional issues that arise in any attempt to restrict
transnational surveillance networks. These problems
are compounded by profound changes in the relationship
between people, states and corporations.
State of Surveillance
Washington in what looked primarily like an attempt to
secure Germanys admission to the Five Eyes club.
In cahoots with the UK, the German government also
blocked the swift adoption of the draft EU Regulation
on data protection requested by the EUs Parliament
and Commission, stalling long debated and much
needed reforms.
The French government described the NSAs
practices as totally unacceptable before including
provisions in the Defence Bill 2014-2019 that grant its
own intelligence services expanded powers to record
telephone conversations, access emails, location and
other metadata with no judicial oversight whatsoever.
Meanwhile the UK government, whose spying on its
EU partners surely represents a transgression against
friends of a far greater magnitude than anything the
USA has managed, has been the most brazen in rejecting
any criticism, describing GCHQs critics as airy-fairy
types and encouraging a witch hunt against the Guardian.
This has seen Glenn Greenwalds partner detained at
Heathrow airport under-terrorism laws and a laptop
owned by the newspaper destroyed with an angle-grinder
under supervision of state agents. None of this bodes well
for the state of democracy in that country.
The European Commission, devoid of any power
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As to the USA, for all the opining on the terrible
state of democracy in that country, it is already streets
ahead of EU member states in considering the domestic
reforms that maybe necessary to safeguard its citizens
against intelligence overreach. A Federal judge has
just produced a preliminary ruling stating that the NSAs
bulk phone record collection is likely to be in violation
of the US constitution, also labelling the practice
indiscriminate, arbitrary and almost-Orwellian. This
sentiment was then echoed by a Presidential Review
Group on Intelligence and Communications Technologies
whose 46 recommendations if implemented in full
would at least lead to some significant curbs on the NSAs
surveillance powers.Time will tell if Obama is up for the
fight; the historical precedents are not encouraging.
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can be mustered, it will at best take years to agree
and much longer to ratify. In the short term, domestic
measures that limit surveillance by intelligence agencies
are the only meaningful route to reform.
Needles vs haystacks
Edward Snowdens revelations have already inspired a
growing number of legal challenges and courts in Europe
and the USA are being asked to weigh the legitimacy of
what has been revealed against legal requirements to
respect human rights and due process. This is the latest
incarnation of the decade-old debate about the need to
balance liberty with security and the new practices
introduced under the war on terror. It is a debate that
liberty has been long been on the losing side of; it must
be hoped that Snowden has reversed this trend. In the
political arena, it has taken the form of a struggle against
mass, indiscriminate surveillance and in favour of laws
mandating surveillance only when necessary, targeted
and proportionate.
What both of these debates too often ignore is
the fundamental shift in what national security now
entails, from the labour intensive, record-keeping era
of Hoover and McCarthy to the banks of big data and
intensive processing that NSA boss Keith Alexander
now presides over. In this sense the power struggle is
between a 20th century set of liberal democratic checks
and balances, grounded in nation states and the regulation
of investigatory powers, and a new transnational, preemptive and mass surveillance-based model that has
developed in the 21st. The difficulty in trying to make this
new model respect traditional notions of probable cause
and due process is that the many of the methods it uses
are antithetical to these notions.
Pre-emption has long been at the core of the states
national security mission. Whereas surveillance by
police investigating criminal activities is supposed to
start with probable cause that a known suspect is
worthy of attention followed by judicial authorisation
for any intrusive measures, national security agencies
are essentially tasked with identifying threats and
mitigating risks before they materialise. Post 9/11, this
risk management paradigm has spread throughout the
Homeland Security apparatus to encompass everything
from pre-emptive detention to secret blacklists and
extrajudicial killings by drone strikes, fuelling state
repression across the world and encouraging the
targeting of anyone who challenges the status quo.
Forced to defend their bulk data collection
programmes for the first time, intelligence chiefs have
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proposed an end to the bulk metadata collection by the
NSA, but proposed instead that service providers keep it
for 30 months with access to the data controlled by the
(traditionally permissive) surveillance courts.
As noted above, the EU may be moving in the other
direction; its Court of Justices advisory opinion having
adopted a dim view of its Data Retention Directive and
the principle of keeping data for long periods just in case
it later proves useful for police and security agencies.
Ultimately the two sides will have to resolve at least some
of their differences in respect to surveillance powers
and privacy protections if existing EU-US cooperation is
to be maintained or deepened. This may even offer the
best prospects for the substantive development of an
international agreement in the longer term.
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armour. It must be assumed that an already powerful
surveillance industry will seek to fill any security void
created by the democratic control of state surveillance.
If were serious about limiting surveillance, we need
serious restrictions on state and private sector alike.